dissenting.
I respectfully dissent because I disagree with the court’s evident conclusion that the Arkansas case law must “clearly indicate” that the petitioner’s case was not submissible *171to the jury before he can prevail on his habeas claim. I believe that the proper inquiry is whether, under the governing Arkansas precedents, the petitioner was entitled to a directed verdict. For the petitioner to prevail, in other words, I think it is enough that the law is in his favor, even if it is not clearly in his favor. The court’s holding injects a novel ingredient into the law of habeas corpus, a law already overburdened with prolixity and uncertainty. The court also creates a requirement that imposes a burden on the petitioner that is unwarranted either by policy or past practice.
My reading of the relevant eases, moreover, makes me believe that the petitioner’s case was not in fact submissible under Arkansas law. While the court seems to think that the Arkansas authorities are not easy to reconcile, I note that both of the cases cited for the proposition that a submissible case had been made out were decided by the Arkansas Court of Appeals. If there is a conflict between the Court of Appeals and the Supreme Court of Arkansas, our duty, of course, is to apply the law decided by the latter. The precedents of the Court of Appeals, on one hand, and the Supreme Court, on the other, are not of equal weight, and therefore cannot conflict.
There is, moreover, a perfectly plausible way of resolving the apparent conflict. All of the Arkansas cases are consistent with the proposition that sole possession by a defendant of stolen goods is sufficient evidence to avoid a directed verdict in his favor, but that joint possession with an admitted accomplice is not. See Cockrell v. State, 256 Ark. 19, 505 S.W.2d 204 (1974), Olles v. State, 260 Ark. 571, 542 S.W.2d 755 (1976). In this last case, the court remarked that the facts before it were like Cockrell, which it characterized as holding that “the mere fact that stolen guns were found in the trunk of the accused’s automobile was not sufficient corroboration of the testimony of an accomplice who lived with the accused and had free use of the car, especially when the accused was at work.” Olles, 260 Ark. at 576, 542 S.W.2d at 759. The court’s reliance on the ambiguity produced by the joint possession of the accused and an accomplice is evident. Our facts not only present a case of joint possession, but the truck on which the stolen goods were loaded was driven by the accomplice at the time of the arrest and evidently belonged to one of his relatives. There was nothing whatever in the evidence to connect the truck with the defendant.
I am thus of the view that Jackson was prejudiced by his lawyer’s failure to preserve the corroboration issue for appeal. I would therefore remand the case for further proceedings on the question of the professional unreasonableness of the lawyer’s conduct.